Coles Supermarkets Australia Pty Ltd v Tormey

[2009] NSWCA 135

New South Wales

Court of Appeal

CITATION:	Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135
HEARING DATE(S):	8 May 2009
JUDGMENT DATE:	9 June 2009
JUDGMENT OF:	Giles JA at 1; Ipp JA at 3; McColl JA at 89
DECISION:	(a) The appeal is upheld and the cross-appeal is dismissed; (b) The orders made by Nield DCJ are set aside and in lieu thereof there is to be a verdict and judgment for Coles; (c) Ms Tormey to pay the costs of the trial and the costs of the appeal, and; (d) Ms Tormey to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
CATCHWORDS:	TORTS - negligence - duty of care - duty to protect against acts of third parties - where respondent customer injured on appellant's premises by other customers' unruly behaviour with trolley - whether appellant, by its employees, knew of activities creating risk of injury to the respondent. - EVIDENCE - general - other general matters - unexplained failure to call witnesses - whether Jones v Dunkel inference available - burden of explaining absence of witnesses. - APPEAL - appeal - general principles - law applicable at the time of appeal by way of rehearing - where change in law after trial subsequently reversed by statute prior to hearing of the appeal.
LEGISLATION CITED:	Civil Liability Act 2002 Civil Liability Legislation Amendment Act 2008 Suitors’ Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29 Cai v Zheng [2009] NSWCA 13 Canterbury Municipal Council v Taylor [2002] NSWCA 24 Eggins v Brooms Head Bowling & Recreational Club (1986) 5 NSWLR 521 Guiney v Australand Holdings Ltd [2008] NSWCA 44 Harrison v Melham [2008] NSWCA 67 HML v R [2008] HCA 16; (2008) 235 CLR 334 Jones v Dunkel [1995] HCA 8; (1959) 101 CLR 298 Payne v Parker [1976] 1 NSWLR 191 R v Vaitaiki (NSW Court of Criminal Appeal, Unreported, 8 October 1993) South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 State of New South Wales v Bujdoso (2007) NSWCA 44; (2007) 69 NSWLR 302 TAB Ltd v Atlis [2004] NSWCA 322 Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279; (2006) 68 NSWLR 387
TEXTS CITED:	Lexis Nexis Au, Cross on Evidence (Australian Edition) looseleaf
PARTIES:	Coles Supermarkets Australia Pty Ltd (Appellant) Rebecca Tormey (Respondent)
FILE NUMBER(S):	CA 40203/08
COUNSEL:	J G Stewart (Appellant) D A Wheelahan QC; M J Maxwell (Respondent)
SOLICITORS:	McCulloch and Buggy Lawyers (Appellant) Adams & Co Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5460/05
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	14 April 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Tormey v Coles Supermarkets Australia Pty Ltd [2008] NSWDC 67

- 1 -

CA 40203/08
DC 5460/05

GILES JA
IPP JA
McCOLL JA

9 June 2009

Coles Supermarkets Australia Pty Ltd v Rebecca Tormey

Judgment

1 GILES JA: I have had the advantage of reading the reasons of Ipp JA in draft. Coles’ appeal should be upheld for the reasons given by his Honour. Mrs Tormey’s cross-appeal does not arise, but on the position explained in Cai v Zheng [2009] NSWCA 13 by Hoeben J, with the agreement of Basten JA, it could not succeed. Mrs Tormey formally submitted that their Honours’ view was incorrect, but it should be followed and would have governed the outcome of the cross-appeal had it arisen. It is not necessary to express a view on the application of Eggins v Brooms Head Bowling & Recreational Club (1986) 5 NSWLR 521 and Guiney v Australand Holdings Ltd [2008] NSWCA 44, and I agree that it is in the circumstances preferable not to do so.

2 I agree with the orders proposed by Ipp JA.

:

Ms Tormey’s claim for damages

4 Between 12 noon and 1.00 pm on Saturday, 8 February 2005, the respondent (Ms Tormey) was shopping at a supermarket operated by the appellant (Coles) in Gladesville. Her eleven-year old daughter, Melissa, accompanied her. Saturday was the busiest day of the week for the supermarket and there were many customers in the store.

5 While in a shopping aisle displaying cleaning materials, Ms Tormey crouched down in order to pick up an item that she wished to purchase. She was thereupon struck in the back by a shopping trolley and was significantly injured by the blow.

6 Two men, in their late twenties or early thirties, had been playing with the trolley. One had been pulling it from the front while the other held on to the bar at the back and lifted his feet so that they were off the ground. The man in front would let go his hold and the momentum would propel the trolley forwards with the man at the rear clinging on with his legs in the air. While the trolley was being propelled in this way, it collided with Ms Tormey.

7 This was not an isolated incident. Ms Tormey had seen the men behaving in the same way at previous times while she was shopping that afternoon.

8 Ms Tormey brought a claim in negligence against Coles for the damages that she had suffered. Nield DCJ upheld her claim. His Honour found that Coles had negligently failed to ask the two men to cease their behaviour and its omission to do so had caused Ms Tormey to sustain a significant disability in her lumbar spine. He found a verdict for Ms Tormey in the sum of $298,064.58 and ordered judgment for Ms Tormey in this sum. Coles appeals against his Honour’s decision.

The primary judge’s findings

9 Nield DCJ found that, when entering the supermarket, Ms Tormey and Melissa heard the two men in question behaving in a loud and boisterous way inside the store. Shortly thereafter, the two men came into view. His Honour found (at [25]):

“One man was pushing the trolley at one end and the other man was pulling the trolley at its other end. The man pulling the trolley let go of it and the other man ‘rode’ the trolley, bent over it, until its movement stopped. Then, the men with the trolley went out of sight and [Ms Tormey and Melissa] continued from one aisle to the next aisle.”

10 The men continued to make loud noises. Ms Tormey and Melissa were in the store for 15 to 20 minutes before the accident occurred and throughout this period they heard the men shouting and laughing very loudly.

11 As Ms Tormey was squatting in the aisle in which cleaning products were displayed for sale, the trolley hit her back. She looked behind her and saw the two men walking away with the trolley.

12 Nield DCJ found (at [61]) that Coles owed Ms Tormey a duty “to take reasonable steps to prevent injury to people in its store … from the misbehaviour of other people in its store.”

13 His Honour said that he accepted “without reservation or qualification” the evidence of Ms Tormey and Melissa “as to what happened in the store”. He said (at [74]):

“I am satisfied, by the evidence of [Ms Tormey and Melissa], that the voices being made by the two men and their behaviour with the trolley was such that [Coles’] employees within the store must have known of the unruly behaviour of these men and must have realised that this unruly behaviour should be stopped.”

14 His Honour said (at [79]):

“I am satisfied that the failure of [Coles] to ask the two men to cease their unruly behaviour long before the incident involving [Ms Toomey] occurred amounted to a breach of the duty of care that it owed to the people, including [Ms Tormey], in its store.”
The importance of the finding of knowledge

15 The critical finding Nield DCJ made was that Coles, by its employees, must have known “of the unruly behaviour of the two men”. It is this finding which is the foundation of his Honour’s conclusion that Coles was negligent.

16 Nield DCJ found that the need to intervene came from the actual knowledge, on the part of Coles, of the activities of the two men. It is implicit in his Honour’s reasons that, on the basis of the finding of actual knowledge, it was foreseeable that, unless the activities of the two men were checked, injury to customers in the store might result. This finding of actual knowledge underlies both the duty of care and breach that his Honour found.

17 In my reasons in South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 (with which Heydon JA and Santow JA agreed) I said (at [152], 137):

“If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor [2002] NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises.”

A like approach was adopted in TAB Ltd v Atlis [2004] NSWCA 322 at [3] and [35].

18 It is not necessary to consider whether the duty arises from Coles’ capacity to control the conduct of persons on its premises, or from its status as occupier (or both), as both factors were present in this case (see Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29). The significant point is that, on his Honour’s finding, Coles knew of the activities of the two men on the premises and therefore should have foreseen the risk of injury from those activities.

19 The appeal thus turns on the finding his Honour made that the Coles’ employees must have known how the two men were behaving. Mr Stewart, of counsel, who appeared for Coles, focused on this issue in his oral submissions.

The layout of the store and the route that was followed

20 According to a rough plan (not to scale) tendered in evidence, the shape of the store was more or less rectangular. According to the oral evidence, however, the store was 60 metres by 60 metres in area – in other words, it was a square.

21 The layout of the store was of the standard supermarket type. The entry point was at a corner. At the entrance, shopping trolleys were stored for collection by customers as they walked in. To the left of entering customers was a long line of checkout positions where the cash registers were situated and cashiers sat. On the right of entering customers was a wall against which a delicatessen counter was situated. In front of entering customers was a fruit and vegetable section. Directly ahead of the line of sight of entering customers, but on the other side of the fruit and vegetable section, was a dairy section. At least two other dairy sections were situated against the walls at different positions in the store. The parallel shopping aisles commenced to the left of the fruit and vegetable and dairy sections (viewed from the standpoint of the entering customer). It is not clear precisely how many shopping aisles there were, but there seems to have been between four and six (the diagram shows six, not counting the area between the delicatessen and the fruit and vegetable section). On either side of each aisle, shelves displayed goods for sale. A cigarette counter and photographic section were situated towards the middle of the row of cash registers.

22 Thus, a customer wishing to inspect the goods for sale throughout the store would walk through the entrance, pass between the delicatessen counter and the fruit and vegetable counter, pass the dairy section, make a U-turn and walk back in the direction of the cash registers. Shortly before reaching the cash registers, the customer would again make a U-turn and pass into the next shopping aisle (walking away from the cash registers). At the end of this shopping aisle, the customer would make yet another U-turn, and would continue the procedure until he or she had walked through the last shopping aisle adjacent to the wall opposite to that against which the delicatessen was situated.

23 The route I have so described is that which Ms Tormey and Melissa followed on the day of the accident. Both Ms Tormey and Melissa testified that, immediately after they entered the store and walked between the delicatessen and the fruit and vegetable sections, they saw the two men in that area, playing with a trolley. Presumably, shortly before Ms Tormey and Melissa walked into the store, the men had commenced their shopping.

24 In the course of doing their shopping, Ms Tormey and Melissa walked along the aisles, gradually moving towards the wall to their left (that is, the wall opposite to that against which the delicatessen section stood). It seems that, generally speaking, the men were following more or less the same route. This explains how Ms Tormey came to encounter the men a second time, in one of the middle aisles and, a third time, in the second last aisle, when the accident occurred.

The number of Coles’ personnel on duty

25 The judge found that the accident occurred at some time between 12 noon and 1:00 pm on the Saturday in question. Ms Tormey and Melissa were in the store for between about 15 to 20 minutes before the accident occurred.

26 According to Ms Tormey, during this period there were ten persons working in the checkout positions. Of these, three or four were in the cigarette section and some were packing bags for customers. There were 10 checkout positions with cash registers. Thus, not all the cash registers were being operated.

27 Two persons were working in the delicatessen counter. One person was mopping up some milk that had been spilt. About eight persons were working in connection with the dairy sections.

28 His Honour observed that as many as 30 employees of Coles “may have been on duty during the day”. The evidence was that 30 employees might have been on duty from time to time throughout that Saturday. The evidence was not that 30 employees were on duty between 12 noon and 1.00 pm that day.

The noisy behaviour

29 Nield DCJ considered that, for two reasons, the Coles’ employees should have foreseen possible harm to customers. Firstly, they must have heard the noise the men were making. Secondly, they must have seen the men misbehaving with the trolley. I shall deal first with the noise.

30 The evidence as to the noise the men were making was undoubtedly cogent. Melissa said she heard the noise even before entering the store. Both Ms Tormey and Melissa said that the men were very loud. They were laughing and yelling. Ms Tormey said they were “trick acting”. She said that that meant “joking around”. Throughout the period Ms Tormey and Melissa were in the store, they heard the men making a very loud noise.

31 Importantly, the men, although noisy, were not aggressive. Both Ms Tormey and Melissa made it clear that they were “joking around”. Their noise was not directed at any particular customer. Ms Tormey and Melissa did not say that, prior to the accident, the men were in any way obstreperous.

32 The men’s general rowdiness and boisterousness, however, was clearly abnormal and they displayed a lack of concern for the sensibilities of the other customers in the store. Nevertheless, their noisiness, on its own, did not suggest that the men might cause harm to others in the store.

33 Accordingly, a finding that Coles’ employees should have foreseen that harm might arise from the men’s activities is dependent upon the employees knowing what the men were actually doing with the trolley. Hence, the importance of Nield DCJ’s finding that Coles’ employees must have known of those activities.

The two prior incidents

34 I have mentioned that Nield DCJ accepted the evidence of Ms Tormey and Melissa “without reservation or qualification”. Their evidence, however, was not identical. There were inconsistencies between their respective accounts of what had occurred.

35 Importantly, Ms Tormey testified that, before the trolley hit her in the back, she saw the two men indulging in horseplay with the trolley on two, different, occasions and places within the supermarket. Melissa described only one such incident before her mother was struck. Nield DCJ did not refer to this discrepancy. In my view, in the light of his Honour’s findings as a whole, Ms Tormey’s account of the incidents must be accepted. His Honour made it clear that he accepted Ms Tormey’s version. Mr Stewart did not contend otherwise.

36 I have referred to two “incidents”. By the term “incident” I do not mean only one occurrence involving the men and the trolley. I mean, rather, what occurred, firstly, near the delicatessen and fruit and vegetable sections and, secondly, in one of the middle aisles.

37 The first incident occurred when Ms Tormey and Melissa were at the fruit and vegetable section. At that time, Ms Tormey saw the trolley being pulled by one of the men who was in the front of the trolley. The other man had his hand around the rear bar of the trolley and had lifted his legs in the air. He was inclined forwards over the trolley. Ms Tormey saw the man in front “pulling it and letting it go”, while the man on the back “was scooted along basically with it”.

38 I understand from Ms Tormey’s reference to the man “pulling it and letting it go” that the pulling and letting go of the trolley occurred more than once.

39 Ms Tormey said that the man pulled the trolley to a point where a carpet area on the floor of the store met a tiled area, and then let it go. She was asked what then occurred to the trolley and she replied, “it went for a little bit and then stopped”. She was asked whether that happened “just the once” and she said that she observed it “two times after that”.

40 It is not clear whether the two occasions to which Ms Tormey was referring occurred during the first incident or, later, at some other place in the store. I would infer from Ms Tormey’s evidence that, during the first incident, she observed the man in front pulling and letting the trolley go (while the other man was positioned as she described) on more than one occasion.

41 Melissa gave similar evidence to her mother concerning the first incident. She said that one of the men was in front of the trolley and steering it, “but letting it go, like, pushing it”. She repeated “he pulled it and pushed and let it go”. She said that while this occurred the other man was holding on to the bar (at the rear of the trolley) and lifting his body up with his feet off the ground. Thus, while the man had his hands on the bar and his feet off the ground, the trolley was going forward with him on it. Melissa’s evidence reinforces my understanding that, during the first incident, on more than one occasion she and her mother saw the men behave in the way so described.

42 When Ms Tormey was in what she described as “the middle aisle” she saw the men again. They were in the same aisle. They were playing with the trolley as they had at the fruit and vegetable section. She heard the man at the back of the trolley tell the man in front, who was pulling the trolley, to go faster. He did so. The trolley passed her with the man at the back riding it as described.

43 Ms Tormey said: “They were going fast and then letting it go, he was getting speed up and then letting it go”. She said: “[T]he chap that was on the bar was running … or walking very very fast, and then the chap that was on the front of the thing was letting it go and they were laughing about it”. She described the man at the front as running with the trolley while the other was on the back with his legs in the air. She said that the trolley went, at speed, “maybe three-quarters of the way down the aisle”. Ms Tormey indicated that the distance it travelled was some six metres. This evidence implies that, during the second incident, the trolley was let loose, more than once, to travel in an uncontrolled way.

44 Ms Tormey said that, when the men came towards the end of the middle aisle, they walked around “as if nothing kind of had happened”. They were then walking towards the checkouts where the cash registers were situated. Plainly, they were making as if they were ordinary, normal, customers. It is to be inferred that they then proceeded up another aisle, moving towards the side of the supermarket opposite to that where the delicatessen was situated.

45 After the second incident, according to Ms Tormey, the men were “getting louder and they were getting very boisterous, they were just cahooting”.

46 The accident occurred in consequence of a third incident. Ms Tormey was struck when she was shopping in “the second last aisle”. She did not see the trolley coming towards her because she was facing the goods on display and bending down. At that stage she was about three quarters of the way down the aisle towards the check-out registers. Melissa was standing next to her.

47 Melissa saw the front of the trolley hit her mother in the back. At the time of impact, one of the men was on the back of the trolley. After the impact, he let go.

48 From Melissa’s evidence, it appears that, during the third incident, the men had been playing with the trolley in the way that Ms Tormey and Melissa had previously observed. That is, the man in front had pulled the trolley with the other man holding on to the back bar with his feet off the ground, and had then let the trolley go in an uncontrolled way.

49 After the incident Ms Tormey called the men “bloody idiots” and they became abusive. Ms Tormey immediately reported the incident to the manager of the store (Ms Candava) but, according to her, the manager “didn’t want to know anything about it”. Thereafter, Ms Tormey spoke to a woman on a checkout counter (Ms Simms) and told her that she had been hit in the back with a trolley.

Did the men’s behaviour require Coles to intervene?

50 Mr Wheelahan QC, who together with Mr Maxwell appeared for Ms Tormey, submitted that knowledge of the first incident alone, coupled with the noise, gave rise to reasonable foreseeability of harm.

51 While this submission is not without force, I have come to the conclusion that it should not be accepted. The significant feature of Ms Tormey’s description of the first incident is that, when asked what happened to the trolley after the man in the front had let go of it, she replied, “It went for a little bit and then it stopped”. This suggests that, during the first incident, the trolley was not pulled at any speed likely to cause harm to others. Even accepting that the trolley was pulled and let go more than once at the fruit and vegetable section, Ms Tormey’s omission to testify about any instance which indicated that the men were handling the trolley in a way that might pose a danger to others is significant. Her evidence does not suggest that the men’s activities during the first incident were a potential source of danger to others. On the evidence, it would have been reasonable for any Coles’ employees observing the behaviour involved in the first incident to regard it as involving isolated occurrences of high spirits that did not involve risk to others.

52 It may be arguable that knowledge of the first incident, together with the continuing noise, should have led the Coles’ employees who observed the first incident to have monitored the men. This point, however, was not raised at trial and not investigated there, nor was it raised in argument on appeal. I shall therefore say nothing more about it.

53 In my view, the second incident was significantly more serious than the first. The trolley was pulled at a greater speed and travelled a relatively long distance. Any person seeing such behaviour would have perceived that, if it continued, other persons would be at risk of harm.

What steps could Coles have taken to prevent harm

54 Coles had a policy relating to “Unruly Behaviour and Undesirables”. According to this policy:

“Unruly or suspected persons are to be ordered out of the Store; this is to be done without other people hearing. It is suggested that the phrase ‘We wish you to leave our premises’ be used.
…
If persons refuse to leave the store when requested to do so, send for the Police … .”

55 It is, of course, a matter of judgment as to whether particular noisy behaviour can be regarded as “unruly”. The juxtaposition between “unruly” and “suspicious” behaviour in the Coles policy suggests that the term involves behaviour that comes close to constituting a criminal offence. In the light of the fact that the men were laughing and joking, I do not think that their noisy behaviour, alone, fell into that category. In any event, the policy does not of itself prove the standard of behaviour by which Coles conduct is to be measured. It may be regarded as evidence to be taken into account when assessing that standard.

56 There was evidence that Coles had a procedure for dealing with troublesome customers. This was known as a “Mr Steed call”. “Mr Steed” was the hero of a well-known television series popular in past years. According to the procedure, if customers were giving trouble at a particular area in the store, a call would be made on the public address system requiring “Mr Steed” to attend at the section identified as the trouble spot. All male staff members were then required to leave their positions and go to that section. The customers concerned would be asked to stop whatever they were doing. If they did not respond appropriately, they would be asked to leave the store and the police would be called.

57 Coles called five employees to testify. One, Mr Trpcevski, was the store manager. He testified as to the existence of the Mr Steed system. Only one of the other four (Ms Candava) knew of the system. Whether the system was properly in place does not bear on the question of causation. It is sufficient to say that, on a common sense basis, had Coles’ employees confronted the two men before the accident, the probabilities are that they would have ceased playing with the trolley. The men’s behaviour was not aggressive. There is no reason to believe that a warning from a person in a position of responsibility would not have had the desired effect.

Did Coles know of the first and second incidents

58 As I have noted, at the time of the first incident, two persons were serving in the delicatessen section. The men were directly opposite the delicatessen section. The distance between the men and the delicatessen section was about six to nine metres.

59 In my view, the evidence adduced by Ms Tormey raises a prima facie inference that the employees serving in the delicatessen section must have seen the first incident.

60 Coles did not call any person who was so serving to testify. No evidence was given that explained this omission. Mr Wheelahan submitted that the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 applied to reinforce Ms Tormey’s case in regard to the first incident.

61 In Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279; (2006) 68 NSWLR 387 Tobias JA (with whom Mason P and Hodgson JA agreed) said (at [400]):

“As Glass JA stated [in Payne v Parker [1976] 1 NSWLR 191 at 201E], whether the principle [in Jones v Dunkel ] can or should be applied depends upon satisfaction of three conditions, namely:

‘(a) the missing witness would be expected to be called by one party rather than the other,

(b) his evidence would elucidate a particular matter,

(c) his absence is unexplained.’”

62 In R v Vaitaiki (NSW Court of Criminal Appeal, Unreported, 8 October 1993), Sheller JA (with whom Wood and Grove JJ agreed) said of the rule in Jones v Dunkel:

“If an explanation for the absence of a witness is called for, it is for the party who might have been expected to have called the witness to provide the explanation. If the party does not provide an explanation, the other party wishing to rely upon the failure to produce the witness, is not required to cross-examine about the absent witnesses whereabouts.”

63 The three conditions referred to by Tobias JA in Wollongong Fabrications Pty Ltd v Ramsbottom were fulfilled as regards the omission of Coles’ employees to testify about the first incident. In my opinion, Ms Tormey established that Coles’ employees serving at the delicatessen section must have known of the first incident.

64 The second incident falls into a different category. There was no evidence that any Coles’ employee was in the middle aisle in question at the relevant time. It is theoretically possible that a person sitting at a cash register opposite or nearly opposite the aisle in question might have seen the second incident. But there was no evidence that there was any person sitting at such a place when the second incident occurred. Such evidence was necessary as the ten cash registers were not all occupied when the second incident took place. There is no evidence that establishes precisely where the cashiers were sitting. A dairy section was opposite one of the middle aisles, but no attempt was made in evidence to identify the aisle that Ms Tormey described as the “middle aisle” and to prove that the second incident would have been seen by an employee at or attending to the dairy section concerned. No other employee was identified as a person that would have been able to see the second incident.

65 Ms Tormey testified that, after the second incident, when the men got towards the end of the aisle they walked around to the next aisle as if nothing had happened. This would have made it more difficult for the Coles’ employees to appreciate that something untoward was occurring.

66 I have mentioned that Coles called five persons as witnesses who were employees at the time of the accident. The first was Mr Williams. He worked in the dairy sections, loading up the shelves with produce. He had no knowledge of the accident in which Ms Tormey was injured and no knowledge of any disturbances on that day. But Mr Williams was in and out of the store on many occasions during that day. His duties included pulling out pallets of milk from an area outside the store, loading the pallets on to special “trolleys or cages on wheels” and taking them into the store for stacking on the shelves. This process could take up to 20 minutes or longer and would occur once or twice a day. In the result, Mr Williams may well not have been present in the store when the incidents with the men occurred.

67 Ms Simms was on duty either processing films in the photographic laboratory or as a cashier on a check-out counter. She did not hear or see anything untoward. The photographic laboratory is in the front of the store, towards the middle of the cash registers. Ms Simms did not know whether she was working at the photography laboratory or on a cash register at the relevant time. When asked whether she had a lunch break that day between 12 noon and 1:00 pm, she replied “Could be most possible, yes sir”. She said that the first time she saw Ms Tormey could have been when she resumed her duties after lunch.

68 Ms Han was on duty as a cashier. She too did not recall the incident. She started duty, however, at 12:56 pm and the relevant incidents probably occurred in her absence.

69 Ms Candava also did not recall anything relevant. Her normal procedure at the relevant time was to take her lunch between 12:00 noon and 1:00 pm. The relevant incidents, also, could well have occurred in her absence.

70 The store manager, Mr Trpcevski, was not on duty on 8 February 2003.

71 There seems to have been no plan or logic in the selection of the witnesses that Coles called. It was by no means clear that any of them was in the store when the relevant incidents occurred. No evidence was given concerning the availability of the other personnel who were on duty at the relevant time.

72 Mr Wheelahan submitted that the rule in Jones v Dunkel supported the judge’s finding that Coles must have known of the second incident. I do not accept that submission. The rule does not operate to fill gaps in the evidence. It holds that an unexplained failure by a party to call witnesses may, in appropriate circumstances, lead to an inference that the uncalled witness, evidence or missing material would not have assisted that party’s case. See Jones v Dunkel at 308, 312 and 320 – 321; Lexis Nexis Au, Cross on Evidence (Australian Edition) looseleaf, para 1215. The point was reiterated by Heydon J In HML v R [2008] HCA 16; (2008) 235 CLR 334 at ([303], 438):

“In civil cases the unexplained failure of a party to give evidence, call witnesses or tender material is not treated as evidence of fear that it would expose an unfavourable fact, nor as an assertion of the non existence of the fact not proved: the only consequence is that the failure can cause an inference arising from the evidence of the opposing party to be more confidently drawn.” (Citation omitted.)

73 The evidence adduced on behalf of Ms Tormey does not establish an inference that Coles’ employees must have known of the second incident. Thus, the rule in Jones v Dunkel has no work to do in regard to the second incident.

74 In my opinion, while Coles must have known of the first incident, it was not proved that it knew of the second incident.

Conclusion as to liability

75 In my opinion, Ms Tormey failed to prove that Coles knew of all the activities of the two men in the store on the day she was injured. As Ms Tormey did not prove that Coles knew of the second incident, Coles’ knowledge of the relevant circumstances was insufficient to give rise to a duty on its part to take reasonable care to avoid a risk of injury arising from those activities. Alternatively, as Ms Tormey did not prove that Coles knew of the second incident, she did not prove that Coles failed to respond adequately to the risk of harm constituted by those activities and, therefore, did not prove that Coles breached any duty of care imposed on it.

76 Accordingly, in my opinion, the appeal must be upheld.

The cross-appeal

77 Ms Tormey cross-appeals against Nield DCJ’s refusal to award her any amount for future domestic assistance. In view of my conclusion that the appeal must be upheld, the cross-appeal falls away as it is futile. I shall, nevertheless, briefly deal with the parties’ main contentions.

78 In dealing with the claim for future domestic assistance, his Honour said (at [105]):

“Although I accept that the plaintiff needs assistance from her daughter in performance of the heavier household tasks, I am not satisfied that she needs that assistance for more [than] 6 hours per week.”

79 Prior to the Civil Liability Legislation Amendment Act 2008 [the Amending Act] s 15(3) of the Civil Liability Act 2002 provided:

“Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided:

(a) For less than 6 hours per week, and
(b) For less than 6 months”

80 In Harrison v Melham [2008] NSWCA 67 the majority of this court held that only one of the two limbs of s 15(3) had to be satisfied before a plaintiff could be awarded damages for gratuitous attendant care services.

81 Nield DCJ’s judgment was delivered prior to Harrison v Melham and the basis of his refusal to award any amount for future domestic assistance was that both limbs of s 15(3) had to be satisfied.

82 By the Amending Act, Harrison v Melham, in effect, was reversed.

83 Ms Tormey contends that his Honour should have applied the law as laid down by Harrison v Melham. The answer to this submission appears in the judgment of Hoeben J (with which Basten JA agreed) in Caiv Zheng [2009] NSWCA 13 where his Honour said (at [78] –[79]):

“On an appeal by way of rehearing, this Court is required to apply the applicable law enforced at the time of the appeal: State ofNew South Wales v Bujdoso (2007) NSWCA 44; (2007) 69 NSWLR 302 at [52]. The question is whether the amending Act, whilst in force at the time of this appeal, applies to this case. In the context of the transitional provisions, a case is ‘determined’ upon judgment being given at trial, subject to any appeal, thus, the matter was ‘determined’ by the trial judge, subject to a contingency. It is doubtful that by use of the word ‘determined’, the statute intended to allow the rehearing of a case solely on the ground that the new provision had not been applied. The preferable construction, as explained by Hodgson JA in Bujdoso , is that the amendment should apply on a rehearing, but only in cases where the judgment below is to be set aside for other reasons: the contingency should be so understood.
This construction does not assist the respondent in a cross-appeal. She wishes the judgment to be set aside so that this Court’s ruling in Harrison can be applied. But immediately that argument is entertained, this case is no longer one which has been ‘determined’ and this Court must apply the statute, with the same result as that achieved by the trial judge … it follows, therefore, that unless Harrison applies, the cross-appeal must fail. But once the issue is reopened on appeal, it must be determined by reference to the Amending Act and not Harrison .”

84 In the present case, Ms Tormey wishes the judgment to be set aside so that this Court’s ruling in Harrison can be applied. Once, however, the issue is reopened on appeal in that way, it must be determined by reference to the Amending Act and not Harrison. Thus, the cross-appeal would, in any event, fail.

85 It was submitted on behalf of Mrs Tormey:

“[ Eggins v Brooms Head Bowling & Recreational Club (1986) 5 NSWLR 521] is authority for the proposition that an unsuccessful party to proceedings cannot seek to have a verdict , based on an accepted state of the law, set aside on the ground that the law is later held to be different from what it was at the date of the trial.
[ Guiney v Australand Holdings Ltd [2008] NSWCA 44] is authority for the proposition that where the law changes after trial but before judgment is given, in circumstances where a party had an opportunity to bring a change of law to the attention of the judge but did not , a new trial will not be in the interests of justice.”

86 Mr Stewart submitted that Eggins and Guiney precluded Ms Tormey from raising an argument based on Harrison.

87 The issues involved in this argument were raised in the parties’ written submissions but only touched on in oral submissions. They concern not insubstantial questions of law and fact. In these circumstances I would prefer not to express a firm opinion on them.

Orders proposed

88 I propose the following orders:

(a) The appeal is upheld and the cross-appeal is dismissed;

(b) The orders made by Nield DCJ are set aside and in lieu thereof there is to be a verdict and judgment for Coles;

(c) Ms Tormey to pay the costs of the trial and the costs of the appeal, and;

(d) Ms Tormey to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified.

89 McCOLL JA:

I have had the benefit of reading Ipp JA’s reasons in draft. I agree with his Honour for the reasons he gives that the appeal should be upheld.

90 I also agree with his Honour that the cross-appeal should be dismissed because, by reason of Cai v Zheng [2009] NSWCA 13 (at [78]–[79]), it would have to be determined by reference to s 15(3) of the Civil Liability Act 2002 (see Sch 1, cl 32, Civil Liability Act) and not Harrison v Melham [2008] NSWCA 67. On that basis it is doomed to fail.

91 I agree with Ipp JA that no view should be expressed about the matters which raise the proper application of Eggins v Brooms Head Bowling & Recreational Club (1986) 5 NSWLR 521.

92 I agree with the orders Ipp JA proposes.

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